Polly Toynbee on liberty
(not that we should believe a word she says)
Monday was Human Rights day and all this week the Guardian comment pages and Comment is free online have carried articles about Labour’s human rights record. Some stories burn into the memory, such as Natasha Walter writing about 13-year-old Meltem Avcil, the Turkish Kurdish girl snatched from her school after living in the UK for six years, to be locked up as a failed asylum seeker.
Jack Straw, the justice secretary, wrote a robust defence of the party’s record, rightly proud of some civil liberties gains.
Labour’s Human Rights Act is under constant attack from the right, who threaten to repeal it.
To be fair, not so much repealed as in wholly deleted, but done over, redone, rewritten.
The Freedom of Information Act shifted the terms of engagement between citizen and state.
In a way.
Ending Section 28 was a milestone: no future government will dare pass homophobic laws. Anti-discrimination laws were tightened, Westminster power was devolved,
Sort of.
police are independently investigated
Well, sometimes.
– all these are welcome freedoms.
Er no, they aren’t freedoms – it isn’t a freedom that police are independently investigated.
Henry Porter,
You may be interested in his response to Polly.
doyen defender of the individual against Big Brother state, retaliated with a list of Labour’s infractions of personal liberties. This, too, makes convincing reading: start with locking up suspects without trial for 28 days – let alone extending it to 42 days, when even the director of public prosecutions sees no reason why.
Of course, the original proposal was 90 days.
Porter lists ending the right to silence in court and permitting bailiffs to break into homes. He adds Labour’s mad restrictions on the right to protest, with spectacular own-goal anti-terror laws that had Walter Wolfgang ejected from the Labour conference and Maya Anne Evans arrested for reading out the names of those killed in Iraq.
But Porter’s list is contentious. For instance, anti-discrimination laws on grounds of disability, religion and sexual orientation appear both in Straw’s list of freedoms and in Porter’s list of infringements. As both list the new laws against discrimination on grounds of disability, religion or sexual orientation, here is the clash of the right to free speech with the right not to be abused. From here on, we plunge into thickets of conflict, between individual rights and the duties of the state to all. One citizen’s protection easily becomes another citizen’s infringement.
The problem with restrictions on speech is that the state and its agents act on behalf of citizens who may not have even made a complaint, and people won’t say certain things for fear of committing an offence.
Therefore such legislation has a chilling effect, common across the globe, where people with influence and authority try to guess what others might be offended by, and hence won’t allow certain things to be said.
There need not be any complaints made for something to be censored.
The police take action even when no complaints have been made.
Unfortunately people like Polly seem to look at generalities rather than specifics: if someone proposes anti-discrimination legislation, she thinks “brilliant”, rather than looking at the specifics, what we have to trade-off, the big picture.
What really matters?
What matters is the cost: economical, social, political, environmental.
What matters is the trade-off, the cost/benefit ratio.
There are blurred lines between security for all and freedom for each, with only a shifting balance of probabilities.
Not sure what she means by that.
My argument with Jack Straw is against the number of despotic gestures made purely to appease public opinion. First
– 90 days, 60 days –
28 days, now 42 days’ detention without trial is incomprehensible when viewed through the lens of recent history. The Northern Ireland conflict killed 3,524 people: the IRA almost succeeded in assassinating the prime minister and the entire British cabinet, and did kill MPs and a member of the royal family. So is the threat worse now? Fifty-two were killed by Islamist terror in the London attacks of July 2005, and worse may be to come. But have we lost that sang-froid we used to boast of, now abandoning civil liberties for what may be no greater threat?
On the other side, my argument with Henry Porter concerns his paranoia about the state and the disproportion of his indignation over things of minor importance.
Well, in Polly’s opinion those things are of minor importance. Porter should be concentrating on other things, she thinks. Polly seems to have a more limited capacity for caring: if she cares about something, it precludes her from caring about something else.
Therefore what strikes me at this point, is why Polly wrote her article rather than serving hot soup at the local shelter.
Given the sheer volume of human suffering and social injustice all around us, he encourages undue obsession with CCTV, the DNA database, ID cards, the children’s database, or indeed the silly anti-protest laws that make rather happy (Turner prize-winning) martyrs out of mild protesters.
In fact, the artist (Mark Wallinger) won the prize for copying the protestor’s (Brian Haw’s) ‘installation’ in Parliament Square.
And I’m sure that many people do have more immediate concerns than CCTV and ID cards etc. But that does not mean there is “undue obsession” – that we should not consider such proposals.
Perhaps too, Henry Porter is more interested in writing about such things than human suffering and social injustice. Perhaps he is exploiting a gap in ‘the market’.
Regardless, these issues are important. Now, some people have more time for them than others. I have no problem with that. They are free to spend their time as they choose. Certainly many people are in a position where they have more immediate and worrying concerns, such as how to put food on the table.
But to say we should be worrying about ‘human suffering’ rather than the database state… well, that’s Polly’s idea of freedom in a nutshell – she wants to dictate what you should think.
From here, of course, she conflates/confuses civil liberties with social injustice.
On the worst estates, CCTV helps clear out drug dealers. DNA data uncovers wrongful convictions. The children’s database could prevent Victoria Climbié horrors,
Worth pointing to the Government’s own words: the children’s database (ContactPoint) is primarily about ‘early intervention’, not child protection per se.
CCTV is primarily about making people feel more safe (security theatre) , not that that’s a bad thing, and forensics (ie evidence for use in the legal system), not deterring people from committing crime (the original, claimed purpose).
The DNA database may be responsible for wrongful convictions, as well as uncovering them. It isn’t infallible – a mistake Polly and her ilk make.
Again, what are the trade-offs? How good are these systems, really? And what price do we pay for them?
Don’t let Polly – or for that matter, me – dictate to you what value to place on these things.
But I suggest assigning some distrust to people who claim such proposals are brilliant without discussing the downsides.
Would we, for example, be better off giving (say) a million pounds to the police instead of spending it on CCTV? It just doesn’t come up for discussion.
tracking children at risk when they are moved. The main danger of ID cards is that they will be an expensive failure (see Ben Goldacre’s devastating Bad Science column on biometrics).
Well, that and the (meta)database tracking every interaction of our identity with the public and private sectors, the fact that there has been no discussion in the public domain from Government about what will happen when it breaks down or is abused, but don’t let that concern you Polly.
The Porter view has become fashionable because it allows the middle classes to pretend to be victims, too.
How patronising and utterly wrong and stupid.
But it is decadence for mainly privileged people to obsess over imaginary Big Brother attacks on themselves, when others all around them are suffering badly from neglect by the state – or sometimes from real aggression by government. Indignation is precious, not to be squandered on illusory threats, but saved for real injustices.
I have lots of indignation to spare, I assure you!
Let’s list some of the worst things that happen people in Britain – things rather worse than being filmed by a CCTV camera no one will bother to check unless you are mugged. Worst is the twilight life of maybe a million illegal immigrants exploited in unregulated jobs or enslaved in the sex trade. Failed asylum seekers who can’t return are deliberately starved with nothing but a £35 voucher to be cashed in one shop, with no change, never mind the price of a bus fare.
Well then, let’s reverse the argument: if there is little indignation and time to spare, if resources are limited, why doesn’t the Government concentrate on social injustice rather than infringing our liberties?
Same goes for Polly.
Meltem Avcil is just one girl caught in periodic sweeps, which at the present rate of removal would take 25 years and £4.5bn to clear the backlog. For real suffering, the treatment of these migrants beats all else – and it’s time for a controlled amnesty after, say, four years. But here is a clash between the citizens’ right to control the borders that define their citizenship versus the human rights of the helpless and destitute living here anyway.
How do you rank the liberties of other extreme sufferers? The frail and lonely are badly neglected with ever less care as councils tighten their criteria. Young children all alone caring for sick parents have their childhood and their future destroyed. Prison suicides, and now prisoners shamefully locked in for 23 hours a day. Abused children suffer silently in direct proportion to social workers’ overburdened caseloads. Thousands dying slowly in agony are denied by parliament the right to go at a time of their choosing. Evidence recently from the Sutton Trust report yet again shows that birth is destiny: poor children stand virtually no chance of escaping poor lives. Meanwhile, exhausted families of disabled children and adolescents struggle to get even the most basic help. Add here all those whose acute suffering can only be alleviated by a kindlier, more generous state. For them a better funded “nanny state” is the solution, not the threat.
I don’t understand why a ‘nanny state’ has anything to do with those issues, which are of course all a concern. How best to deal with them? Put up another million unregulated CCTV cameras?
Of course, losing our freedoms of speech and assembly means we cannot complain so effectively about social injustice. I wonder if she considered that.
But the Porter view turns the state into public enemy number one. That is the traditional rightwing view, but many on the left are buying into this creed of individualism against the collective. The left can’t resist also being victims: oh, to be arrested for a cause! Labour has played into their hands with cavalier curtailments of civil liberties for illusory political gains. But the left should beware the old rightwing wolf dressed in civil liberties sheep’s clothing that pursues individual freedoms for the powerful at the expense of collective freedoms for all.
Very New Labour.
This is the same mindset that sees taxes as an infringement of liberty and an Englishmen’s property as his inalienable untaxed castle to hand down, untaxed, to his children.
Well, taxes are in a sense an infringement of liberty – in the sense that, I earned it, it’s my money, and I should be free to do what I like with it. Likewise for property – I earned the money, I bought the place fair and square, what ‘right’ does the state have over that?
I’m not sure how anyone can reasonably disagree.
What we can reasonably disagree on is how much of my earnings should be taxed. Again, what is the trade-off?
It is the mindset in which the right to choose “personalised” services trumps everyone else’s fair chance for best schools and hospitals.
Well no, what ‘the right’ asks is, what is the best way to provide education and health services (for example), is the state the best entity to provide those things (probably contending that no, it isn’t), is the centre better than a more local service?
Polly seems to assume the state, the centre, is the best entity to provide those things.
Liberty and equality will always rub along together awkwardly. But social democrats should guard against the individualistic my-rights culture of our times that simply ignores the rights of those whose needs are most urgent, in favour of often relatively frivolous paranoia about an overmighty state.
Again, I’m sure we can make time for both.
But clearly Polly doesn’t follow her own advice, because she spent god knows how long on that rubbish rather than helping “those whose needs are most urgent”.
Jack Straw on liberty
Does the sun rise in the east? Has Labour enhanced rights and liberties? The answer to the second question is as unambiguously a yes as to the first.
Well, that’s arguable – at the very least! Jack Straw, of course, was an illiberal Home Secretary, so I suggest plenty of salt.
For example, he was the Home Secretary who introduced the Regulation of Investigatory Powers Bill (as it was). In case you haven’t heard of it, have a look at some news coverage of it. Pretty much unanimously condemned.
So if Jack Straw says the sun rises in the east, I would check for myself.
But let us dwell on this, given the fashionable but false orthodoxy that seeks to deny Labour’s achievements – with its tendency to pocket all that has happened since 1997 as though it were by divine intervention.
The constitutional expert Vernon Bogdanor has commented that when the history of this era is written, the last 10 years will be seen as heralding a “quiet revolution” in the way in which the UK is governed. He is correct. This period has seen a greater improvement in our democracy and people’s sense of rights than any time since the development of the franchise between 1832 and 1928. But the difference is: that took a century, this has taken a decade.
So let’s take a look at the list. First, the Human Rights Act. We really did “bring rights home”, as we said we would. At last British people have been able directly to access and to enforce positive rights in the British courts, rather than having to go to Strasbourg and wait for years in a queue. Some on the right complain that all this has been is a “villain’s charter”.
Including Labour Government Ministers!
Nonsense. However uncomfortable the idea may be, it must be the case that, in a democratic society, even those who deny rights to others have rights themselves – for example, to a fair trial.
Labour, of course, found that idea so uncomfortable that they are gradually getting rid of fair trials in favour of summary justice and introducing new types of civil orders to prevent crime.
Note that the proportion of convictions among the total number of “offences brought to justice” has decreased in the last four years.
But the Human Rights Act‘s reach has extended way beyond the police station and the criminal courts. It has made all “public authorities” – ie institutions with authority over the public – much more careful about how they treat our citizens and those others who are present in the jurisdiction.
The culture in Whitehall has been changed beyond recognition from what I witnessed as a young special adviser in the 1974-79 Labour government, when the “it’s the man in Whitehall who knows best” attitude was still dominant.
The Human Rights Act has been one key factor in changing that, the Freedom of Information Act (FoI) 2000 another.
Which of course the Labour Government made all but toothless and wants to further undermine.
Seriously, does anyone think it is fair that someone making a request under the FOIA is beset by delays, appeals against independent decision-makers, and still has no resolution 1158 days since making the original request?
When the act was going through parliament, some of the pressure groups claimed that it would be no better than John Major’s non-statutory FoI code. Funny how we don’t hear that charge any more. Everyone knows what a difference it has made to openness and accountability of governance – including for journalists.
Well, perhaps the situation is better than it was, but of course it is by no means perfect, as many journalists will tell you.
And indeed, why would it be? As someone more eloquent than me wrote, “Government is set up to hide its failures and publicise its successes” – with this motivation in mind, why would it want us to access the really juicy information? It would be a surprise if it didn’t exempt a lot of information, as indeed it has, and delayed and appealed and destroyed the rest.
The point being that the Government only wants to appear to support Freedom of Information – where its interests conflict with those of Freedom of Information, I think we can safely bet on the Government withholding the information.
Likewise for human rights, say the freedom to protest: even something as innocuous as eating a cake or reading aloud the names of British soldiers killed in Iraq can get you carted off to court. Something Labour introduced (the Serious and Organised Crime and Police Act).
Where the Labour Government’s interests coincide with our freedoms and rights, all well and good; where there is conflict, the Government will fight tooth and nail to ensure it comes first, not you.
The end of section 28, the equalisation of the age of consent, toughened race laws and duties for everyone against indirect and direct discrimination,
Again, loopholes there and compliance isn’t universal, even in the public sector.
Worth noting that there are two: 1995, and 2005.
a minimum wage, the end to the appalling primary-purpose rule, independent investigation and adjudication of complaints against the police.
Again, perhaps better than it was, but sometimes the IPCC will use a police service to investigate complaints against the very same police service – seriously, does anyone think that is a fair process?
All this and devolution to Scotland, Wales and Northern Ireland.
But not England, of course. There are regional assemblies, however, but even those are pertinent to Labour’s record, because what Labour did was this:
- Using a referendum, it asked people in the North-East if they wanted an elected regional assembly;
- The people said NO.
- Labour decided not to bother with the other two referendums it had originally planned for other regions, and give the regions unelected assemblies regardless. The unelected assemblies having power to overrule local, elected authorities on certain issues.
And Jack Straw calls this an unambiguous enhancement of our liberty.
And, little noticed but a personal obsession of mine since the early 90s, we have established the Office of National Statistics on a basis wholly independent of government.
A 1997 manifesto commitment, and not quite complete at the time of writing. I think it will be March/April 2008 when the legislation comes into effect.
Now, with Gordon Brown’s Governance of Britain agenda (pdf), the executive’s prerogative powers on war and treaties are rightly to be replaced by parliamentary powers,
And what about the use of the prerogative with, oh I don’t know, the Chagos Islanders? Something I think Jack Straw was responsible for when he was Foreign Secretary.
the role of the civil service will be legislated by parliament, and we will soon be consulting with the public on the development of a British bill of rights and responsibilities.
However, rights are not free consumer goodies, but fundamentally about how we relate to each other – our neighbours – as well as how we are protected from overweening power of the state. We have “freedoms to” do things in a free society, but “freedoms from” as well. The freedoms from fear, crime and terrorism are as important as positive freedoms. No constituent of mine has ever complained to me that our strengthening of the criminal and antisocial behaviour laws is incompatible with their sense of rights. They are just happy that crime and disorder is down and that they can enjoy a quieter life.
Very few people bother to imagine themselves in a situation where they are stopped and searched under the Terrorism Act for wearing a T-shirt that says “Bollocks to Blair”, or for entering a tube station without making a point of looking at the nice policeman (but not too intently, mind). They are unaware it happens, they cannot imagine themselves in such a situation, they cannot imagine it happening to them.
That Straw’s constituents haven’t complained to him is therefore hardly an argument that there have been no infringements.
Now, liberty, as a judge put it, and a Labour Home Secretary disagreed, means the freedom to do as one wishes – in other words, a freedom from restraint. We may do what we like provided it isn’t explicitly prohibited.
Where the exercise of someone’s freedoms infringe on my freedoms, that is, they do some sort of non-consensual harm (physical, mental, reputation, etc), there should be some sort of legal remedy available to me, or exercised on my behalf.
That is one of the functions of government: to protect our freedoms against those who infringe them, but not to the extent that we or the government disproportionately infringe the other’s freedoms.
People also talk about ‘positive’ freedoms – that is, the freedom to do, rather than freedom from something. Freedom of opportunity, say.
But in either sense, traditionally there has rarely been talk of freedom from “fear, crime, terrorism”, or illiberal Home Secretaries, per se. Jack Straw and his ilk, in using such language – such as the “right not to be blown up” – are just clouding the issue.
Now, great that (well, if) anti-social behaviour is decreasing. But this has been gained at the cost of anti-social behaviour orders and other measures.
There is always a trade-off.
Of course, and particularly since 9/11, there have been some acute issues about whether protections we have sought – especially over pre-charge time for terrorist suspects – are proportionate and fair. We are all acutely aware, as Jacqui Smith has spelt out, of the care that has to be taken – for example over any extension of 28 days. But consider what might have happened if there had been no Labour government over the last 10 years.
Well, there wouldn’t have been all of Labour’s infringements on our liberties. See for example Henry Porter’s handy list.
We wouldn’t have had Blair, for example, saying that “Unfortunately we were unable to maintain the legislation, which we wanted to do, which would give us the power to detain people [without trial]”.
You know, if you really want to know about Labour’s record on civil liberties, just read that one sentence – it says it all – utter contempt for the tradition of freedom in this country, for example habeas corpus, which goes back to the 12th century. The right to challenge the legality of one’s detention, vs. the exercise of arbitrary executive power – in other words, Blair wanted to be able to point a finger at you, and say “he’s a terrorist, lock him up”, and you would be locked up.
Also have a look at Blair’s views regarding the law vs. expediency.
How loudly did Straw, the great supporter and defender of liberty, protest against any of that?
In the aftermath of 9/11, whichever party had been in power would certainly have strengthened counter-terrorist legislation, and almost certainly have extended the potential period of pre-charge detention to 28 days – and maybe beyond. What they would not have done would have been to introduce the Human Rights Act, the Freedom of Information Act, the Race Relations Amendment Act; make life infinitely better for black and Asian people, gay and lesbian people, the disabled; and made a better reality of freedom and rights for everyone in this land.
Useless speculation, really. Other parties may not have introduced such legislation, or they may have introduced better legislation. Your guess is as good as mine. It’s worth noting, though, that a Disability Discrimination Act (the 1995 one) was passed some two years before Labour got into power. So, if Jack got that wrong, what else did he lie about get wrong?
We know they would not have done so because they did not do so when they had the chance.
Conversely we know that with this Government it gives rights with one hand and infringes them with the other, so obviously that will continue – right, Jack?
In many cases – as with section 28 – they did quite the reverse. Yes, the sun does rise in the east. And yes, we have deepened and extended civil liberties for all.
I just wonder if politicians such as Jack Straw really believe what they write and say. If they do, they are stupid; if they don’t, they are dishonest.
another broken promise
From the JCHR report on the 42 day proposal:
64. The importance of the judicial safeguards which accompany pre-charge detention has been consistently emphasised by the Government throughout its consultation on whether there should be an extension beyond 28 days. Indeed, the Government’s preferred option has always been to extend the current 28 day limit with “additional safeguards”. Both the Prime Minister in his statements to the Commons and the bill contents paper refer to enhancing the judicial safeguards which already exist and about “further” judicial scrutiny, and the pre-charge detention options paper talked of balancing any increase in the limit by “strengthening the accompanying judicial oversight”. Judicial safeguards continue to be part of the Government’s description of what it proposes: in the Home Secretary’s letter of 5 December to the Chairman of the Home Affairs Committee, she emphasises that “the higher limit would be … subject to … strong judicial safeguards.”
65. In our last report, we welcomed the Government’s apparent commitment to enhancing the judicial safeguards surrounding pre-charge detention, and in particular the Prime Minister’s acknowledgment that proper judicial scrutiny is essential in order to guarantee against arbitrariness in the exercise of powers which take away liberty.[54] Our welcome proved misplaced: there are no additional judicial safeguards proposed as part of the Government’s preferred option for extending pre-charge detention.
66. We have been puzzled by this aspect of the Government’s proposals since the beginning of the consultation in July, for although there are repeated references in the consultation documents to increased judicial safeguards, no specific proposals were made in any of the consultation papers which amount to improving judicial scrutiny or strengthening the judicial safeguards. We were particularly concerned because we had very recently made detailed and specific recommendations about how to improve the current judicial safeguards surrounding pre-charge detention.[55] When the Minister, Tony McNulty, gave evidence to us in September he again referred to there being stronger judicial safeguards if the power to detain pre-charge were to be extended beyond 28 days,[56] so we pressed him as to exactly what sorts of additional judicial safeguards the Government had in mind.[57]
67. We received a disarmingly candid answer from Mr David Ford, Head of the Counter Terrorism Bill team. He said:
“In terms of judicial safeguards, they are not really extensions. What we are saying is that it would be a High Court judge who would hear extensions beyond 28 days. The only change in terms of judicial safeguards would be that you could not apply for an extension beyond 28 days without the consent of the Director of Public Prosecutions. So you would continue with a High Court judge for any extension hearings beyond 28 days but there would be the additional thing that you would require the consent of the Director of Public Prosecutions.”[58]
Elsewhere in his evidence, however, Mr. Ford said that there may also be an additional role for the judiciary in terms of oversight of the pre-charge detention period.[59] We therefore wrote to the Minister again asking what stronger judicial safeguards the Government has in mind when it talks of strengthening those safeguards.[60] In the Minister’s response, he said that one of the options set out in the consultation papers was increased judicial involvement in the pre-charge detention period, and he said that the Government was now considering the nature of the judicial safeguards for any extended period of pre-charge detention and would keep the Committee informed of developments.[61]
68. In the event, Mr. Ford’s candid answer proved correct. In the Government’s announcement of its preferred way forward, the only additional “safeguard” surrounding applications for warrants of further detention is that applications for extension would require the consent of the DPP. It hardly needs pointing out that this is not a “judicial” safeguard, and it hardly seems a very substantial safeguard as it is already the case that applications for extension of detention are made by the Crown Prosecution Service not the police,[62] and it is inconceivable that the DPP would not be asked to consent to the making of such an exceptional application as one to extend pre-charge detention beyond 28 days.
69. The Home Office’s summary of consultation responses states that any support for an extension of pre-charge detention was on the understanding that there would be additional oversight to ensure that any further detention beyond 28 days was justified, and that most respondents echoed the view that there should be added judicial or Parliamentary scrutiny should the Government decide to go beyond 28 days.[63]
70. In light of the Government’s previous statements of intent to provide additional judicial safeguards surrounding pre-charge detention, and the apparent views of most respondents to the Government’s consultation that such additional judicial safeguards should be provided if any extension to 28 days is proposed, we recommend that the Home Secretary provide Parliament with a full explanation as to why the Government has decided not to propose any additional judicial safeguards.
And they wonder at the lack of trust in politicians.
JCHR report on Counter-Terrorism Policy and Human Rights: 42 days
In short, any extension to pre-charge detention is a serious interference with liberty that requires a compelling, evidence-based case, and the Committee does not accept that the Government has made such a case for extending pre-charge detention beyond the current limit of 28 days, for the following reasons:
i) it can find no clear evidence of likely need in the near future;
ii) alternatives to extension do enough, in combination, to protect the public and are much more proportionate;
iii) the proposed parliamentary mechanism would create a serious risk of prejudice to the fair trial of suspects;
iv) the existing judicial safeguards for extensions even up to 28 days are inadequate (paragraph 101)
On the freedom to participate in compulsory education
See ARCH blog on the proposal to raise the leaving age to 18.
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